IN THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRICT OF FLORIDA Case No.: 2D12-186 L.T. No.: 11-2840-CA MARIO SÁNCHEZ, Appellant, v. ARNON RONY JOEL, Appellee. On Appeal from the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida APPELLANT’S REPLY BRIEF Marc J. Randazza Jason A. Fischer Florida Bar No. 625566 Florida Bar No. 68762 [email protected][email protected]Randazza Legal Group 2 South Biscayne Blvd., Suite 2600 Miami, Florida 3313101815 Telephone: 888-667-1113 Facsimile: 305-397-2772
Transcript
IN THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRICT OF FLORIDA
Case No.: 2D12-186 L.T. No.: 11-2840-CA
MARIO SÁNCHEZ,
Appellant,
v.
ARNON RONY JOEL,
Appellee.
On Appeal from the Circuit Court of the Twentieth Judicial Circuit
REPLY BRIEF OF APPELLANT ........................................................................... 1
A. Section 770.05 applies to all defendants, including Dr. Sánchez. .................................................................................................... 1
B. Notwithstanding the broad applicability of Section 770.05, Dr. Sánchez’s status as a “media defendant” is unquestionable. ........................................................................................... 5
C. Even if Section 47.011 is applied to determine venue, Appellee has not shown that Dr. Sánchez resides in Collier County. ............................................................................................... 8
D. Appellee’s hearsay objections are overcome by evidence properly admitted to the record and judicially noticeable facts. .............................................................................................................. 11
Brown v. Griffen Industries, Inc., 281 So.2d 897 (Fla. 1973) ................................................................................... 12
Canonico v. Calloway, 35 Med. L. Rptr. 1549 (Fla. Cir. Ct. Feb. 22, 2007) ............................................. 6
Chaves v. Chaves, 84 So. 672 (Fla. 1920) ........................................................................................... 9
Comins v. Van Voorhis, No. 2009-CA-015047-O (Fla. Cir. Ct. Jun. 28, 2011) .......................................... 6
Holt v. Tampa Bay Television, Inc., 24 Med. L. Rptr. 1540 (Fla. Cir. Ct. Mar. 17, 2005) ............................................. 6
Holt v. Tampa Bay Television, Inc., 976 So.2d 1106 (Fla. 2d DCA 2007) .................................................................... 6
Home Insurance Co. v. C & G Sporting Goods, Inc., 453 So.2d 121 (Fla. 1st DCA 1984) .................................................................... 12
Lewis v. State, 833 So.2d 812 (Fla. 4th DCA 2002) ................................................................... 12
Minick v. Minick, 149 So. 483 (Fla. 1933) ......................................................................................... 9
(holding that Fla. Stat. § 770.07 applies to all defendants, but stating that Chapter
770, without any limitation stated, applies to all civil litigants).1
A comparison of the language of Section 770.01 and Section 770.05 clearly
demonstrates the latter’s broader applicability. As a qualifier to types of
publications and broadcasts where Section 770.01 applies, the Florida Legislature
has mandated that such publications and broadcasts must be found in particular
media:2
770.01 Notice condition precedent to action or prosecution for libel or slander. – Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.
Fla. Stat. § 770.01 (2011) (emphasis added). By its own plain terms, Section
770.01 is not to be applied to every allegedly defamatory statement – but only 1 In an attempt to limit the applicability of Wagner, Appellee has cited the opinion in Tobkin v. Jarboe, 695 So.2d 1257 (Fla. 4th DCA 1997), claiming that the Forth District came to the conclusion, based on Wagner, that only Section 770.07 should be applied to nonmedia defendants. This is not an accurate summary of the holding in Tobkin, which again only opined upon the applicability of Section 770.01 – not the entire remainder of Chapter 770. See Tobkin, 695 So.2d at 1258. Moreover, Appellee’s citation to the Florida Supreme Court review of Tobkin as “approving” such limitation is similarly disingenuous, where the cited opinion only dealt with the issue of qualified immunity for individuals filing complaints against members of the Florida Bar. See Tobkin v. Jarboe, 710 So. 2d 975, 978 (1998). 2 It bears again mentioning separately that the limitation in Section 770.01 is to the publication medium, not the publisher.
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those that appear in a newspaper, periodical, or other medium.3 In contrast,
Section 770.05 does not contain any limitation to its applicability.
Instead of providing language that limited the applicability of Section 770.05,
the Florida Legislature has indicated that it applies to “any” allegedly defamatory
statement:
770.05 Limitation of choice of venue. – No person shall have more than one choice of venue for damages for libel or slander, invasion of privacy, or any other tort founded upon any single publication, exhibition, or utterance, such as any one edition of a newspaper, book, or magazine, any one presentation to an audience, any one broadcast over radio or television, or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.
Fla. Stat. § 770.05 (2011) (emphasis added). Instead of limiting the applicability
of Section 770.05, an illustrative, non-exhaustive and non-exclusive list of “such
as” examples has been provided to define a single actionable instance of alleged
defamation. Where Section 770.01 contains clearly limiting language, Section
770.05 demonstrably does not.
Even if it were not clear from the plain language of Section 770.05 that this
section should be applied to all defamation defendants, where the Florida Supreme
Court has expressly held that Section 770.07 does apply to all defamation
3 Despite Appellee’s assertions to the contrary, other Florida courts have held that blogs fall into Section 770.01’s catch-all category of “other medium.” This point is further developed in Section B infra.
5
defendants, see Wagner, 629 So.2d at 115, it is wholly illogical to conclude that
Section 770.05 would not apply – especially since it is specifically referenced in
Section 770.07. See Fla. Stat. § 770.07 (2011) (“The cause of action for damages
founded upon a single publication or exhibition or utterance, as described in s.
770.05, shall be deemed to have accrued at the time of the first publication or
exhibition or utterance thereof in this state.” (emphasis added)).
Accordingly, Appellee’s position – that Section 770.05 should not be
applied to his lower court claims – is incorrect. As seen in the Florida Supreme
Court’s precedent and the statute’s plain language, Section 770.05 applies to every
defamation action in this state.
B. Notwithstanding the broad applicability of Section 770.05, Dr. Sánchez’s status as a “media defendant” is unquestionable.
As demonstrated herein, while some sections of Chatper 770 may turn on the
type of publication, the applicability of Chapter 770 as a whole does not depend on
the type of defendant in a civil action for defamation. Rather, the sections of this
Chapter apply to defamation actions generally. Even if this were not true, and
further assuming that Appellee’s theory is correct – i.e., that Dr. Sánchez must be a
“media defendant” before Chapter 770 applies – Appellee’s corollary position that
Dr. Sánchez is not a “media defendant” is incorrect.
Other Florida courts have reviewed the question of whether “other medium,”
as used in Section 770.01, includes the Internet and internet discussion forums, and
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held that they do. See Comins v. Van Voorhis, No. 2009-CA-015047-O (Fla. Cir.
Ct. Jun. 28, 2011) (order granting summary judgment in favor of defendant);4 Alvi
Armani Med., Inc. v. Hennessey, 629 F. Supp. 1302 (S.D. Fla. 2008) (citing
Canonico v. Calloway, 35 Med. L. Rptr. 1549 (Fla. Cir. Ct. Feb. 22, 2007)
(involving story posted on an internet website)). Even this Court has
acknowledged that “other medium” as used in Section 770.01 includes the Internet.
Holt v. Tampa Bay Television, Inc., 976 So.2d 1106 (Fla. 2d DCA 2007), affirming
24 Med. L. Rptr. 1540 (Fla. Cir. Ct. Mar. 17, 2005). The courts of other states
have already accepted the blogging community as an integral part of the Fourth
Estate. See 1:19, Rules of the Mass. Supreme Judicial Court (effective July 1,
2012) (permitting citizen journalists to bring electronic devices into the courtroom
for blogging).
In support of his argument that Dr. Sánchez is not a “media defendant,”
Appellee attempts to rely on Zelinka v. Am. Healthscan, Inc., 763 So.2d 1173 (Fla.
4th DCA 2000). In Zelinka, the defendant was an individual, with no connection
to any publication, who posted something on an internet bulletin board. Zelinka,
763 So.2d at 1174. Moreover, the defendant in Zelinka was the poster of a
comment – a one-off statement that could have been left on any website that allows
4 The full text of the Comins opinion has been included in Dr. Sánchez’s prior-submitted Appendix. [App. pp. 49-52.]
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for third parties to leave comments. Zelinka, 763 So.2d at 1174. However, as
blogging was not even in existence in 2000, the 4th District Court of Appeals
demonstrated foresight that borders on prescience by making this statement:
It may well be that someone who maintains a web site and regularly publishes internet “magazines” on that site might be considered a “media defendant” who would be entitled to notice. Zelinka does not fall into that category; he is a private individual who merely made statements on a web site owned and maintained by someone else.
Zelinka, 763 So.2d at 1175. Appellee has asked this Court to accept the myopic
position that a blog is the same as a message board – contrary to the Zelinka
court’s caution against doing so – despite the fact that, unlike the defendant in
Zelinka, Dr. Sánchez has full editorial control to publish news and information on
his Online Newspaper.
As established by record evidence, Dr. Sánchez’s Online Newspaper is a
news and opinion publication with nationwide readership and three-times-weekly
dissemination. [App. p. 61.] The fact that Google, Inc., provides the web
distribution platform on which the Online Newspaper is published does not
magically change its character into a message board, where any number of random
persons may add their two cents. Rush Limbaugh does not own the radio stations
that broadcast him. Still, there is no serious question that Rush is a part of the
“media.” Carl Hiaasen is part of the media even if he does not own the Miami
Herald. Greta Van Susteren does not own Fox News. A Huffington Post blogger
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does not need to own the Huffington Post, or AOL, or Time-Warner to be a media
defendant. Even on-camera assistants on Wolf Blitzer’s show, who do not have
full editorial control over the content, and surely do not own CNN, fall within what
constitutes the “media,” and it would defy logic if they did not.
Dr. Sánchez’s blog seems to fit squarely within the predictions made by
Judge Stevenson. While nobody calls a blog an “internet magazine,” that is what a
blog is. In contrast, a bulletin board clearly is not a blog, nor a publication of any
kind, and thus is distinguishable. Dr. Sánchez writes and publishes his own blog.
He was not posting on somebody else’s bulletin board, or even on somebody else’s
blog. He was the blogger, not the private citizen, and worthy of protection under
Chapter 770. The fact that Dr. Sánchez does not own the Internet, or some part of
it, is irrelevant to the applicability of Chapter 770 in his case.
C. Even if Section 47.011 is applied to determine venue, Appellee has not shown that Dr. Sánchez resides in Collier County.
In addition to misinterpreting Chapter 770, Appellee contends that Florida’s
general venue statute, Fla. Stat. § 47.011, should be used to determine the proper
venue for his claims, rather than the standard set forth by the Florida Supreme
Court in Perdue v. Miami Herald Publishing Co., 291 So.2d 604 (Fla. 1974). Dr.
Sánchez disputes Appellee’s position, asserting that his Online Newspaper is
entitled to the same treatment as any other news publication. Yet Appellee’s
asserted position, even if correct, would not support venue in Collier County.
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Under Appellee’s theory of the law, where Dr. Sánchez resides is central to
the question of whether venue in Collier County is proper. A party’s residence is
established in the county where such party is domiciled. See Minick v. Minick, 149
So. 483, 488 (Fla. 1933). Domicile is established by considering two facts: (i)
where the party is located; and (ii) whether the party intends to remain in that
location. See, generally, District of Columbia v. Murphy, 314 U.S. 441 (1941);
Wetherstein v. Wetherstein, 111 So. 2d 292, 293 (Fla. 2d DCA 1959) (“The two
essential elements to the acquisition of a new domicil or domicil by choice, as
distinguished from domicil of origin, are (1) residence in a new locality, (2)
coupled with an intention to make it one’s home, that is to say, an intention to
permanently remain there and not return to the old locality.”) (quoting 11 Fla. Jur.
Domicil and Residence § 11); Warren v. Warren, 75 So. 35 (Fla. 1917); Chaves v.
Chaves, 84 So. 672 (Fla. 1920); and Wade v. Wade, 113 So. 374 (Fla. 1927).
Dr. Sánchez has established by record evidence that he resided in Miami-
Dade County at all times relevant to Appellee’s claims, and has no intention to
relocate. [See App. pp. 12, 59-60.] Appellee has not produced any evidence to
contradict this conclusion. Instead, Appellee attempts to rely on Dr. Sánchez’s
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ownership of an interest in residential property in Collier County to erroneously
establish his residence.5
Florida’s constitutional homestead exemptions are available to a property
owner who resides on the property that he or she owns. See Fla. Stat. §
196.031(1)(a) (2011). In the case of a property solely owned by one individual, the
owning individual satisfies the residence requirement by personally residing on the
property. Id. If the property is owned jointly, however, the residence requirement
for the homestead exemption is satisfied by residence of any one of the joint
owners in the subject property. See id. (“If only one of the owners of an estate held
by the entireties or held jointly with the right of survivorship resides on the
property, that owner is allowed an exemption of up to the assessed valuation of
$25,000 on the residence and contiguous real property.”).
As such, Appellee’s reliance upon homestead tax records for a jointly owned
property cannot be relied upon to establish Dr. Sánchez’s residence. The only fact
established by Appellee’s proffered homestead record is that Dr. Sánchez has an
ownership interest in the subject property. This lone fact is insufficient to establish
Dr. Sánchez’s actual residence or domicile on that property. The remaining
5 Appellee also attempts to rely on the fact that Dr. Sánchez chose not to dispute the adequacy of Appellee’s service as somehow establishing his residence at the place of service. A defendant’s strategic financial choice to forego an objection to service does not – contrary to Appellee’s belief – establish any fact at all.
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uncontroverted record evidence establishes that Dr. Sánchez resides in Miami-
Dade County. Accordingly, it would be clearly erroneous for the lower court to
determine that Dr. Sánchez resides in Collier County, Florida.
D. Appellee’s hearsay objections are overcome by evidence properly admitted to the record and judicially noticeable facts.
Finally, in attempting to refute where his cause of action accrued, Appellee
has erroneously asserted Florida’s rule against hearsay in an effort to discredit
valid proof entered into the record by Dr. Sánchez. In presenting his position,
Appellee has stated, without any justification or clarification, that the internet
protocol (“IP”) addresses of Dr. Sánchez’s readers are hearsay, and that records
kept of those IP addresses are double hearsay. Appellee has made an inexplicable
leap in logic to arrive at these conclusions, which are demonstrably incorrect. A
full analysis of whether a particular piece of evidence is hearsay properly includes
consideration of the truth for which the evidence has been offered – a step that
Appellee has missed. See Fla. Stat. § 90.801(1)(c) (2011); see also Jackson v.
State, 25 So.3d 518, 530 (Fla. 2009) (observing that questions of hearsay turn on
whether the matter asserted in the statement is the matter for which such statements
are offered as proof).
Dr. Sánchez has presented the business records of his Online Newspaper to
demonstrate the location of his readers on July 8, 2011 – i.e., the date of
publication for the article Appellee claims is defamatory. [App. tab 11.] These
12
records inform the Court of the unique identifier for each device to which the
Online Newspaper was transmitted at the times indicated. [See App. pp. 68-69.]
While the previously recorded IP address records may be considered hearsay if
offered to show the locations where the Online Newspaper was sent, the IP address
records’ submission falls squarely within the business records exception to
Florida’s rule against hearsay. See Fla. Stat. § 90.803(6) (2011) (indicating that
records of regularly conducted business activity may be admitted over a hearsay
objection). Appellee cannot manufacture a level of hearsay by simply moving the
goalposts and changing the matter to be proved.
These business records are no different than the shipping records of a mail
order product company, which would unquestionably be admissible upon
certification by a custodian of those records. See, e.g., Lewis v. State, 833 So.2d
812, 815 (Fla. 4th DCA 2002) (certified shipping records establish a rebuttable
presumption that shipment occurred); see also Brake v. Florida Unemployment
Appeals Com., 473 So.2d 774, 774 (Fla. 3d DCA 1985) (“a letter properly
addressed, stamped and mailed is presumed to have been received by the
addressee”; “Proof of mailing is generally satisfied by proof of general office
practices.”) (citing Brown v. Griffen Industries, Inc., 281 So.2d 897 (Fla. 1973) (on
rehearing); Home Insurance Co. v. C & G Sporting Goods, Inc., 453 So.2d 121
(Fla. 1st DCA 1984); and Berwick v. Prudential Property & Casualty Assurance
13
Co., 436 So.2d 239 (Fla. 3d DCA 1983)). These IP address records identify the
“addresses” where Dr. Sánchez’s Online Newspaper was delivered. One need not
rely on the out-of-court statement of the ordering customer to know the destination
of a shipped item. A different out-of-court statement (i.e., the shipping record) can
be offered to properly show the truth of where a particular product was shipped, so
long as the requirements of the hearsay exception have been honored.
Dr. Sánchez has provided and certified the “shipping” records for his Online
Newspaper, in the form of IP address records, in full compliance with the
applicable hearsay exception, thereby proving to where the Online Newspaper was
sent on the date in question. The geographic location associated with each IP
address is judicially noticeable as a fact capable of accurate and ready
determination by resort to sources whose accuracy cannot be questioned. See Fla.
Stat. § 90.202 (2011). The lower court is required to take notice of such facts upon
request by any party. Fla. Stat. § 90.203 (2011). Dr. Sánchez submitted such a
request, and thereby established the geographic location of one IP address in
particular – the one used by the first reader of the article that Appellee claims is
defamatory. [App. tab 7.] Accordingly, Appellee has failed to dispute Dr.
Sánchez’s proof of where Appellee’s cause of action accrued.
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CONCLUSION
For all of the reasons set forth above and in Appellant’s Initial Brief, this
Court should reverse the lower tribunal’s Order stating that venue is proper in
Collier County and remand this action with instructions to either dismiss
Appellee’s Complaint or transfer to a county that satisfies the requirements
imposed by Florida’s defamation statutes.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via U.S. Mail, postage prepaid, on this 8th day of March, 2012, to:
Christopher D. Donovan Roetzel & Andress, LPA 850 Park Shore Drive Trianon Centre – Third Floor Naples, Florida 34103
Jason A. Fischer
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing complies with the font
